White v. CBS Corp.

• Decision Date: 30 June 1999
• Docket Number: No. 03-98-00194-CV,03-98-00194-CV
• Parties: (Tex.App.-Austin 1999) Pauline White, Individually and as Personal Representative of the Heirs and Estate of Charles Norman White, Deceased, Appellant v. CBS Corporation f/k/a/ Westinghouse Electric Corporation, Appellee
• Court: Texas Court of Appeals

Page 920

996 S.W.2d 920 (Tex.App.-Austin 1999)

Pauline White, Individually and as Personal Representative of the Heirs and Estate of Charles Norman White, Deceased, Appellant v. CBS Corporation f/k/a/ Westinghouse Electric Corporation, Appellee

No. 03-98-00194-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 30, 1999

From the District Court of Travis County, 353rd Judicial District No. 92-10123-A, Honorable Peter M. Lowry, Judge Presiding

Before Chief Justice Aboussie, Justices Kidd and Powers^*

John E. Powers, Justice

Pauline White, individually and as representative of the estate of Charles Norman White, appeals from a summary judgment that she take nothing by her actions against Westinghouse Electric Corporation. We will reverse the judgment and remand the cause to the trial court.

THE CONTROVERSY

Charles Norman White contracted cancer (mesothelioma). In 1992, he and his wife Pauline White sued Westinghouse and twenty-one other manufacturers and suppliers of asbestos and products requiring the use of asbestos. The Whites alleged asbestos caused the cancer and that the defendants were jointly and severally liable for the Whites' injuries on causes of action for negligence, gross negligence, strict liability arising from a dangerous product, and conspiracy. Charles Norman White died in 1993, and Pauline White¹ appeared in the cause thereafter as representative of his estate. The actions against Westinghouse were based on Mr. White's alleged exposure to asbestos in the course of his work on and around industrial turbines that Westinghouse designed, manufactured, and installed for Mr. White's employer, the City of Austin.

Westinghouse moved in October 1993 for a "Partial Summary Judgment" based on the bar of the ten-year statute of repose found in section 16.009 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code 16.009 (West 1986). The trial court granted the motion in 1994 and ultimately determined in a 1998 summary judgment that White take nothing by her actions against Westinghouse. White appeals from the 1998 summary judgment.

APPELLATE JURISDICTION

Westinghouse contends we must dismiss White's appeal for want of a timely notice of appeal. The following events transpired in the trial court after Westinghouse filed on October 8, 1993, its motion for partial summary judgment:

On February 24, 1994, the trial judge signed an "Order Granting Partial Summary Judgment," reciting that Westinghouse's motion had been heard, that it "should be granted," and it is therefore ordered that the Motion for Partial Summary Judgment filed by Defendant, Westinghouse Electric Corporation, be and is hereby granted.

The order contains no decretal language.

On May 2, 1994, the trial judge signed an "Agreed Order for Severance of Plaintiff's Claims Against Westinghouse Electric Corporation." The order was filed the day it was signed, and states as follows:

It is therefore ordered, adjudged and decreed that all claims against Westinghouse should be severed from claims against all other Defendants and from all other cases consolidated with Plaintiff's case for trial on May 9, 1994, and trial of such claims against Westinghouse should be continued. It is further ordered that such case is severed and the clerk is ordered to place in the new file (Cause No. 92-10123A) a copy of the most recent petition as well as copies of Westinghouse's Motion for Summary Judgment [sic] and all responses related thereto.

(emphasis added). More than three years later, on February 19, 1998, Westinghouse filed a "Motion for Summary Judgment" stating as follows:

On February 24, 1994, [the court] granted summary judgment to Westinghouse based on the Texas Statute of Repose. This extinguished Plaintiff's claims relating to her decedent's exposure to Westinghouse's turbine-generators. . . . Plaintiff's last mandatory discovery filings indicate that there are no claims of any other type of exposure against Westinghouse. Therefore, there remain no genuine issues of material fact and Westinghouse is entitled to summary judgment on all claims.

The trial court sustained the foregoing motion in an "Order Granting Summary Judgment," signed by the trial judge on March 12, 1998. The order states as follows:

Came on to be heard on the 12th day of March, 1998, [Westinghouse's] Motion for Summary Judgment on all issues. The Court, having considered the Motion, the evidence [sic] before the Court, and arguments of counsel, is of the opinion that there is no genuine issue as to any material fact and said Motion should be granted. It is, therefore Ordered that all of Plaintiff's claims against [Westinghouse] are dismissed with prejudice [sic], with costs incurred in the defense of this matter to be taxed against Plaintiff.

White filed notice of appeal on April 1, 1998.

Westinghouse contends the summary judgment order signed February 24, 1994, was a judgment that disposed of all claims against Westinghouse, and it became final and appealable on May 24, 1994, with the filing of the agreed order severing White's claims against Westinghouse from her claims against the other defendants. See IPM Prods. Corp v. Motor Parkway Realty Corp., 960 S.W.2d 879, 882 (Tex. App.-El Paso 1997, no writ); 5 McDonald Texas Civil Practice 27.8, at 21 (1992 ed.). Consequently, White's notice of appeal, filed almost four years after the 1994 judgment became final and appealable, was too late to perfect her appeal.

We conclude the order signed February 2, 1994, was not a final judgment made appealable by the subsequent order of severance.

No presumption of finality attaches to a summary judgment. The imputation of finality depends on the trial judge's intention, drawn from the language of the order in question, the record as a whole, and, where pertinent, the parties' conduct. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1966). The order signed February 24, 1994, does not, of course, imply a severance of any kind. See Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 324 S.W.2d 200 (Tex. 1959). The order does not purport to declare the legal effect of granting Westinghouse's motion, as by ordering that White take nothing by her causes of action against Westinghouse. See Rosedale Partners, Ltd. v. 131st Judicial Dist. Court 869 S.W.2d 643, 646-48 (Tex. App.-San Antonio 1994, no writ); Harper v. Welchem, Inc. 799 S.W.2d 492, 493-96 (Tex. App.-Houston [14th Dist.] 1990, no writ)' Chandler v. Reder, 635 S.W.2d 895, 897-97 (Tex. App.-Amarillo 1982, no writ); 5 McDonald, supra, 27.24.

The agreed severance order filed May 2, 1994, dispels any belief that the preceding summary judgment order was intended to be a final judgment that awaited only a severance to become appealable: the severance order directs a continuance of White's actions against Westinghouse, thus rejecting explicitly any idea that those actions had been finally adjudicated in the partial summary judgment signed February 24, 1994. And after the severance was ordered, Westinghouse itself moved for summary judgment on the entire case against it, which action on its part demonstrates objectively that the 1994 judgment was not understood to be a final adjudication. This second of the Westinghouse motions for summary judgment resulted in the summary judgment order signed March 12, 1998.

While the March 12, 1998, order is also defective, because it purports to dismiss in lieu of adjudicating White's cause of action against Westinghouse, we believe the trial court's intention is sufficiently clear from the language employed in the order (dismissal "with prejudice") and the record as a whole. We construe the order to mean that White shall take nothing by her actions against Westinghouse.

For the foregoing reasons, we hold the summary-judgment order signed February 24, 1994, was not a final and appealable judgment, but he order signed March 12, 1998, was such a judgment. White's notice of appeal was therefore timely. We overrule Westinghouse's contention that we must dismiss White's appeal for want of jurisdiction.

THE STATUTE OF REPOSE

The parties dispute the proper interpretation and application of section 16.009. The statute provides as follows:

(a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or deficiency in the construction or repair of the improvement.

(b) This section applies to suits for . . .

(2) personal injury; (3) wrongful death;

(4) contribution; or (5) indemnity.

Tex. Civ. Prac. & Rem. Code 16.009 (West 1986).

The following are reasonable inferences from the deposition transcripts, affidavits, and other parts of the summary judgment record: Mr. White was exposed to asbestos in the course of his work at the Seaholm and Holly Street power plants between 1952 and 1974 when he was employed as a maintenance worker at the two plants. He came to the Seaholm plant in 1952. At that time,...